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What to expect from amendment to rape law in 2013

January 01, 2013 00:19 IST

Home Minister Sushil Kumar Shinde has sought suggestions from political parties to give more teeth to the existing laws on rape. However sources point out that along with enhancing rape laws there is a proposal to better the police reforms. Vicky Nanjappa reports.

While the Delhi gangrape case would be the basis for the amendment to the laws, the changes would be effected taking into consideration the hardship faced by women right from the stage of filing a complaint.

Sources say while fast tracking of cases and the speed of filing a chargesheet in such cases does not require any amendment, as it is totally the prerogative of the court and the police. However, it has been found that women police personnel are still not treated on par with their male counterparts.

The ratio of rape complaints and the women police personnel are not equal and it is also found that women hesitate and refrain from filing a complaint before a male police constable or officer.

The Criminal Law Amendment Bill of 2012 has given sufficient scope to deal with cases of rape, sources point out. However, what the Home ministry is trying to work out is enhance the number of women police stations and also increase the women force in the police department so that a victim feels more comfortable in giving a complaint.

In addition, they would direct the police to act more as counselors rather than policemen while dealing with such cases. Studies have shown that at least 60 per cent of the cases go unreported as the woman faces humiliation.

The inclusion of counselling centres and more police women would ensure that cases are not hushed and a majority of the incidents are reported to the police. The new reforms would make it mandatory to have more than five all women police stations in each city apart from having two in every district.

Every police station would also be required to have at least one woman police constable of officer on duty at all times.

Now the human rights activists too have sought a say in the amendment to the new laws. Human Rights Watch South Asia Director Meenakshi Ganguly says that there is a need to widen the scope of sexual assault. Moreover, the existing laws are not used properly. Police reforms are also necessary since a victim has to feel comfortable while approaching a cop.

Legal experts say that there is not really much that can be added to the existing provisions under the Indian Penal Code. An option to introduce death penalty looks very remote as there is a good chance of the law being misused.

The Criminal Law Amendment Bill of 2012 gives a fair boost to the law and the more important thing is that it ought to be implemented properly. The Bill seeks to amend the Indian Penal Code and the Code of Criminal Procedure and also the Indian Evidence Act.

Now, with the Home ministry mooting more changes to the laws, these suggestions would be implemented into the Bill and then passed. Under the existing amendment it is stated that under Section 375 any person is said to commit a sexual assault if:

(a) penetrates, for a sexual purpose, the vagina or anus or urethra or mouth of another person with—
(i) any part of the body including the penis of such person; or
(ii) any object manipulated by such person, except where such penetration is carried out for proper hygienic or medical  purposes;
(b) manipulates any part of the body of another person so as to cause penetration of the vagina or anus or urethra or mouth of such person by any part of the other person's body;
(c) engages in 'cunnilingus' or 'fellatio',
under the circumstances falling under any of the following six descriptions:

  • Against the other person's will.
  • Without the other person's consent.
  • With the other person's consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt.
  • When the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.
  • With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent.
  • With or without the other person's consent, when such other person is under 18 years of age.

Section 376:

Whoever commits sexual assault shall be punished with a term not less than seven years, but may extend to life. Legal experts say that this provision would not change much and the sentence would depend on the gravity of the offence.

If death is caused then the provisions of Section 302 will apply where there is a punishment for either life or death. The amendment further states that where a person is subject to sexual assault by one or more persons in furtherance of their common intention, each of the persons in the group shall be deemed to have committed sexual assault.

Amendment to the Evidence Act:

In a prosecution for an offence under section 376 or section 376A or section 376B of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of his or her previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

In a prosecution for sexual assault where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been sexually assaulted and such other person states in that person's evidence before the court that she or he did not consent, the court shall presume that she or he did not consent.

The Law Commission of India in its 172nd Report on 'Review of Rape Laws' as well the National Commission for Women have recommended for stringent punishment for the offence of rape.

The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code, 1860, replacing the word 'rape' wherever it occurs by the words 'sexual assault', to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.

The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc.

The punishment will be rigorous imprisonment which shall not be less than 10 years which may extend to life imprisonment and also fine.

The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under 16 years of age is not sexual assault.

Vicky Nanjappa